V. Variation Proceeding

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 563-563

Evidence; Procedure; Costs 563

is led to the contrary. Because the father’s evidence as to the needs of hi s company was un-

clear and unsubstantiated, the British Columbia Court of Appeal attributed all of the pre-

tax corporate income to him. A fter his application for leave to appeal to the Supreme Court

of Canada was dismi ssed, he sought to re-open the judgment of the British Columbia Court

of Appeal on the basis of documentar y evidence which had been available but not produced

at the trial. e British Columbia Court of Appeal held that if the “new evidence” was as

important as the father claimed, he should have produced it at trial, or at the very latest

by way of an application to adduce new evidence at the original hearing of the appeal. e

fact that he had a new counsel with a dif‌ferent view of the case did not justify what would

amount to a rehearing of the appeal. Wh ile an appellate court has the power to re-open an

appeal in appropriate circumstances, t his was not one of those rare cases where a miscarri-

age of justice would occur if the father was denied t he opportunity to re-open the appeal.190

V. VARIATION PROCEEDING

In Manitoba, variation applications are normally dealt with summarily, but, when there is

a contested issue of fact that turns on credibility, the issue should be determined on viva

voce evidence.191

In Ontario, applications to vary child support orders are frequently decided by way

of motion rather than at a trial. However, where there are few substantive admissions and

numerous factual issues to be resolved, the court may have no alternative but to order the

application to be determined at a trial, even though t he parties desire a determination with-

out a trial.192

In Saskatchewan, variation applications are often determined on the basis of af‌f‌idavit

evidence alone. Whether or not a court will decide an application on af‌f‌idavit evidence

alone, require that the matter be set the matter down for trial, or order a viva voce hearing

as contemplated by Rule 602(12) of Saskatchewan Queen’s Bench Rules will depend on a

number of factors. ese factors include the complexity of the issues to be decided, whether

the af‌f‌idavits conf‌lict on contentious issues, whet her the process would be signif‌icant ly en-

hanced by cross-examination, and whet her the evidence submitted by af‌f‌idavit is complete

and covers the various factors needed to be considered by the trier of fact. is is not an

exhaustive list. 193

W. MASTERS; R EGISTRARS

In British Columbia, a court may direct a reference to the registrar for an inquiry and re-

port concerning the determination of income or expenses for the purpose of applying the

Federal Child Support Guidelines.194

A master has jurisdiction in Manitoba to deal with a motion for the production of f‌i-

nancial information for the purpose of a ch ild support application under the Divorce Act.195

190 Hausmann v. Klu kas, 2009 BCCA 320.

191 Kollinger v. Kollinger (1995), 14 R.F.L. (4th) 363 at para. 17 (Man. C.A .).

192 Wynnyk v. Wynnyk, [2004] O.J. No. 27 (S.C.J.).

193 Hannah v. Warner, [2008] S.J. No. 630 (Q.B.).

194 Yeu ng v. Ye ung, [1999] B.C.J. No. 2901 (S.C.); Sapergia v. Saperg ia, [2001] B.C.J. No. 1204 (S.C.); Carson v.

Carson, [2001] B.C.J. No. 1833 (S.C.).

195 Buhr v. Buhr, [1997] M.J. No. 565 (Q.B.).